Information Age Challenges to the Fourth Amendment

Clearly, I am intensely partial to the supremacy of the First Amendment so succinctly stated in the Bill of Rights. Still, it is one of ten amendments to the Constitution that call for individual reflection and public discourse on the observance of Bill of Rights Day, December 15.

Thinking about the forthcoming observance of Bill of Rights Day on December 15 I have been rethinking the oft-forgotten and admittedly dated Fourth Amendment, a right long taken for granted, now the Cinderella of the technology era.

The Fourth Amendment to the Constitution is an 18th century statement, a vehement push-back to the tendency of the Brits to search and seize at will.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Though Article I, Section 10 of the Minnesota Constitution includes a very similar statement of rights, the Minnesota Supreme Court has at times allowed individuals greater protection of their person, home, papers or other effects. The examples of search and seizure rulings in favor of the defendant include a 2003 case that ruled against “sniff” searches; in another case, the court ruled that DWI sobriety checks are unconstitutional under the Minnesota Constitution.

For 150+ years it was enough to recognize that the “search and seizure” plank of the Bill of Rights kept the Brits at bay. The first technology case involving the Fourth Amendment came in the 1920’s when Justice Louis Brandeis wrote the dissenting opinion in Olmstead v United States. Brandeis anticipated the Information Age by writing in that opinion that “it is now possible to invade the privacy of people at both ends of a telephone wire.” In a prescient alert to the court Brandeis added, “Ways may someday be developed – without breaking into desk drawers – to extract papers from home and introduce them in court before a jury….The court should translate the Constitution and recognize that you don’t need a physical trespass to create an unreasonable search.”

Minnesotans today face a host of technology-based assaults on the Fourth Amendment – ranging from facial recognition technology to cell phone tracking, punctuated by last week’s exposure of Carrier IQ’s invasion of privacy that ignited the wrath of Senator Franken.

The crux of the search and seizure challenges is unwarranted (as in authorities acting without a warrant) stops and searches. Unwarranted searches often occur in situations that arise in public places when the court uses the “reasonableness” test to assess constitutionality of an unwarranted public encounter. An interesting permutation occurred as recently as September 2011 when truckers prevailed in their suit against the Minnesota State Patrol’s “fatigue enforcement program.”

Digital devices and the Patriot Act top the list of premises that lead to unprecedented intrusions for which the law and the courts are ill-prepared. Though the Constitutional issues of self-incrimination, privacy, freedom of expression and security are poised on the scales of justice, technology has outstripped the conditions reflected in the Bill of Rights

The challenge to enforce the rights guaranteed in the Constitution in the 21st Century is one good reason to take seriously the observance of Bill of Rights Day on December 15